Federalist 47, 48, 51

James Madison 41 Limitation of Governmental Power and of Majority Rule The most accurate and helpful way to characterize our political system is to call it a constitutional democracy. The term implies a system in which the government is regulated by laws that control and limit the exercise of political power. In a constitutional democracy people participate in government on a limited basis. A distinction should be made between an unlimited democratic government and a constitutional democracy. In the former, the people govern through the operation of a principle such as majority rule without legal restraint; in the latter, majority rule is curtailed and checked through various legal devices. A constitutional system is one in which the formal authority of government is restrained. The checks upon government in a constitutional society customarily include a division or fragmentation of authority that prevents government from controlling all sectors of human life. Hamilton noted in Federalist 1, "It seems to have been reserved to the people of this country, to decide by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force." The framers of our Constitution attempted to structure the government in such a way that it would meet the needs and aspirations of the people and at the same time check the arbitrary exercise of political power. The doctrine of the separation of powers was designed to prevent any one group from gaining control of the national governmental apparatus. The selections reprinted here from The Federalist, which was written between October 1787 and August 1788, outline the theory and mechanism of the separation of powers. 4 Federalist 47, 48, 51 James Madison Federalist 47 I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative,

42 Constitutional Government executive, and judiciaty departments, ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are disttibuted and blended in such a manner, as at once to destroy all symmetty and beauty of form; and to expose some of the essential parts of the edifice to the danget of being crushed by the disproportionate weight of other parts. No political ttuth is cettainly of great intrinsic value, or is stamped with the authority of mote enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powets, legislative, executive, and judiciaty, in the same hands, whether of one, a few, or many, and whethet heteditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution, therefore, really chargeable with this accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspite a universal reprobation of the system. I persuade myself, however, that it will be made apparent to evety one, that the chatge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. The oracle who is always consulted and cited on this subject, is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit of at least displaying and recommending it most effectually to the attention of mankind.... From... facts, by which Montesquieu was guided, it may clearly be inferred, that in saying, "there can be no liberty, where the legislative and executive powers are united in the same petson, or body of magistrates"; ot "if the power of judging, be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning... can amount to no mote than this, that whete the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.... If we look into the constitutions of the several states, we find, that notwithstanding the emphatical, and, in some instances, the unqualified tetms in which this axiom has been laid down, there is not a single instance in which the sevetal departments of power have been kept absolutely separate and distinct.... The constitution of Massachusetts has observed a sufficient, though less pointed caution, in expressing this fundamental article of liberty. It declates, "that the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them." This declaration cottesponds precisely with the doctrine of Montesquieu.... It goes no farthet than to prohibit any one of the entire departments from exercising the powers of another department. In the very constitution to which it is prefixed, a partial mixture of powers has been admitted....

James Madison 43 Federalist 48... I shall undertake in the next place to show, that unless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly ot indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.... In a government where numerous and extensive pterogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspite. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measutes, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under

44 Constitutional Government complicated and indirect measures, the encroachment which it makes on the cootdinate departments. It is not infrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature; and the judiciary being described by landmarks, still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence over the pecuniary rewards of those who fill the other depattments; a dependence is thus created in the latter, which gives still greater facility to encroachment of the former.... Federalist 51 To what expedient then shall we finally tesott, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.... In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.... It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other, would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government, which is to be administeted by men over men, the great difficulty lies in this: you must fitst enable the gov-

James Madison 45 ernment to control the governed; and in the next place, oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is, to divide and arrange the several offices in such a manner, as that each may be a check on the other; that the private interest of every individual, may be a sentinel over the public tights. These inventions of prudence cannot be less requisite to the distribution of the supteme powers of the state. But it is not possible to give each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconvenience is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments, by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature, appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? Interpreting the Constitution The preceding selections have offered contrasting views on the framing, nature, and purpose of the Constitution. As background, John Locke's political philosophy expressed in his Second Treatise, Of Civil Government (1690) supported the political beliefs of many eighteenth-century Americans in government as a social contract between rulers and ruled to protect the natural rights of citizens to life, liberty, and, very importantly, property. To John Roche the Constitution was a practical political document reflecting compromises among state delegations with contrasting political and economic interests among and advocates of strong national power and proponents of states' rights. Charles Beard saw the Constitution as a reflection of the interests of property owners and creditors who